Sunday, 7 June 2015

Africa and International Criminal Court After the Cold War

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By Victoria Ojo-Adewuyi

There have been many discussions about the International Criminal Court among young African lawyers. Some are of the opinion that the ICC has not been very effective in handling international crimes. This assertion has been supported by the activities of the court in the past 12 years of its existence. While some believe that the court has become a witch hunt tool against African states, others believe it has not justified its existence.

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After the Cold War, World leaders came together to begin discussions that would culminate in creating a court that would address the ‘most serious crimes of international concern.’ The need for this type of court became very apparent after the events that culminated into the Second World War and subsequently the Cold War era. The court seks to investigate and prosecute impunity in all its forms as laid down by the statute.
The Rome Statue is the treaty that established the court. African continent is the highest regional bloc as a signatory the Statute. In Africa, 34 states are signatories to the Statute, compared to 19 Asia-Pacific states, 18 Eastern European States, 27 Latin America and Caribbean states and 25 from Western Europe and other states. It is important to note that the most of the African states that are parties to the Statute are founding members, and they have not only signed but also ratified the treaty and thus are bound by its provisions based on the ‘Pacta Sunt Servanda’ principle of Customary International Law.
The court has the jurisdiction to try cases such as genocide, war cxrimes and crimes against humanity (and the crime of aggression by 2017).
Once a state signs a treaty under international law, it has indicated that it agrees with the ‘spirit and letters’ of that treaty. If a state goes further to ratify that treaty, it has accepted that it will be bound by the provisions of the treaty. Most African states have gone further to domesticate the Statute in their national laws. However, three permanent member states of the UN Security Council – US, China and Russia – are not parties to the statue.
How does the ICC receive its cases? According to the Statute, there are three ways by which the ICC receives situations in states. The first is when the situation is referred by a member state (self-referral), usually the state where the acts occurred or a concerned state that is also a party to the statute. The Security Council acting under Chapter VII of the UN Charter may also refer situations to the court. The third is by the prosecutor of the court ‘Proprio Motu.’
In its years of existence; the court has only managed to complete a few cases. Obviously, this cannot be a good record. So what could be responsible for this?
One of the main challenges of the court is getting cooperation from the state, particularly with regards to the collation of evidence and carrying out of investigation by the court especially in states where investigations were opened by the Prosecutor Proprio Motu or by referral from the UN Security Council. For this and other reasons, the charges against President Uhuru Kenyatta and Omar Al Bashir of Sudan have been withdrawn.
There is also the fact that the court does not have its police force to effect arrests. Because of this situation, the court relies on state parties. A state may simply choose to ignore the warrant for its own reasons. Al Bashir of Sudan was first indicted in 2009 and he travelled to several countries which refused to arrest him. The indictment was eventually dropped by the court in December 2014 due to its inability to investigate adequately and gather evidence against him.
Nigeria also chose to shield former Liberian President Charles Taylor for almost three years before he was eventually arrested and handed over for trial at the Special Court for Sierra Leone.
There is no court that finds itself in the situation that the ICC is that would perform at optimum level. Thus, it requires the support of state parties to investigate and arrest those indicted. When these crucial supports are not provided, it becomes very difficult for the court to do its work.
The argument that the major target of the ICC are African countries was sold to us by African leaders who were indicted by the court and wanted to demean it.
They also went as far as calling all African countries to pull out of the court. In fact, there are ongoing efforts to float an African Court of Justice and Human Rights. The Protocol to the Statute of the court expressly provides for immunity for serving Heads of States and senior state officials, negating accepted principles of International Law since Nuremberg, and of course the provisions of the ICC Statute. This does not look good for the future of justice, the protection of human rights and the end of impunity on our continent.
Currently, there are nine situations under preliminary investigation and only two are in African states, the others being in Afghanistan, Colombia, Georgia, Honduras, Iraq, Ukraine and most recently, Palestine. So, I think it is not a fair assessment from those making this argument without taking the full picture into account. They have no problem with the ICC investigating situations from other parts of the world, but when the situation is in Africa, they claim the court is partial.
Are we trying to say that African leaders may parade themselves as members of the court and still act with impunity? Also, the court does not have universal jurisdiction and cannot force itself on states that are not parties to its statute.
One question that comes to mind is, why are African states always quick to sign and ratify treaties and subsequently act in flagrant disregard of the treaties? Was it not better to sign and ratify treaties that we only intend to respect? In my work, I come across many international treaties and I can count on my fingers those that were not ratified by Nigeria. I had this discussion with a colleague who also commented about this trend that her country has signed specific treaties which address issues that are not danger in her country. Having spoken with many other Africans, I realise that this is a worrying trend which needs to be addressed seriously.
On a lighter note, during the last electioneering period in Nigeria, the ICC became a veritable tool in the hands of major political parties to threaten each other. Whenever one side sneezed, the other side threatened to report to the ICC. Unguarded speeches and statements said in the fit of emotions became subjects of reports to the ICC. In that period, the ICC was seemingly reduced to a jobless mother who settles every single squabble among her erring children. This undoubtedly testifies to how much the court is feared.
Ojo-Adewuyi wrote from the University of Western Cape, South Africa

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